News

Fay Faraday, Judy Fudge and Eric Tucker have accumulated a fine collection of essays and other materials concerning the plight of the agricultural worker. The book has been published by Irwin Law Inc. and is entitled Constitutional Labour Rights in Canada – Farm Workers and the Fraser Case. It can be ordered from Irwin Law at www.Irwinlaw.com (found under "Featured Titles"). This book is both important and contemporary. Royalties from sales are devoted to the trust set up for the families of the migrant workers killed in the horrendous traffic accident near Hampstead Ontario in February 2012

The CALL budget approved at the Conference in Vancouver provides for CALL to make donations of $20,000 to general causes and $5,000 to educational causes this fiscal year (which ends on April 30).

The actual donations to be made are recommended by the Donations Committee and approved by the Executive.

The Donations Committee is in the process of developing its recommendations for this year, and wishes to invite any member with a proposal for a donation to submit that proposal for consideration.

Please include some background information about the group or cause you would propose the donation be made to, and some rationale as to why you feel this would be a worthwhile donation in accordance with the aims and purposes of CALL (as set out in the Constitution available on the CALL website).

Please submit your proposals to David Wright at dwright@rwbh.ca before March 9.

The theme of the 2012 lecture/conference will be Faultlines and Borderlines in Labo(u)r Law: The Future of the Wagner Act in Canada and the United States. This is a joint project of the UWO Faculty of Law, Koskie Minsky, Heenan Blaikie, and the Canada-US Institute at Western.

On Friday, 2 March 2012, Ms. Wilma Liebman, the former Chair of the National Labor Relations Board, will be delivering the seventh Koskie Minsky University Lecture in Labour Law. She was appointed Chair of the NLRB by President Obama as one of his first acts after assuming office in January 2009. The title of her Lecture will be: Labor Law, Economic Justice and Political Rhetoric: Reflections on the Wagner Act.

And the following day, Heenan Blaikie LLP and the Faculty of Law at the University of Western Ontario will be hosting the full-day conference. There will be four panels, on the themes of human rights in the workplace, the role of trade and investment in shaping labour law, the crisis in public sector collective bargaining, and the future of the Wagner Act, with distinguished speakers from both sides of the 49th parallel on each panel. With unionization at 29% in Canada, and 12% in the United States, this conference will assess the viability of the Wagner Act and its ability to continue to promote industrial fairness.

A significant decision was handed down on February 6, 2012 by the Court of Queen’s Bench in Saskatchewan: Saskatchewan Federation of Labour and Govt of Saskatchewan, 2012 SKQB 62. Justice Ball ruled that the province’s essential service legislation is unconstitutional. This was a collaborative effort brought by the Saskatchewan Federation of Labour, supported by two dozen union plaintiffs and intervenors CUPE, SGEU, SUN, and SEIU-West, opposed by the Government and 16 employer intervenors.

This marks the first time in a quarter century that a Canadian court has found that the right to strike is included in the freedom of association under section 2(d) of the Charter. Previously, the right to strike was protected by the Charter in Retail, Wholesale and Department Store Union v. Saskatchewan (1985), 19 DLR (4th) 609 (SKCA) when the Saskatchewan Court of Appeal ruled that the legislature’s back to work legislation on dairy workers to end a lawful strike breached the freedom of association under 2(d). However, this ruling was overturned by the Supreme Court of Canada as part of the Labour Trilogy in 1987.

The Court found that the PSESA violated section 2 (d) and was not saved by section 1 because the PSESA gave employers so much power to designate essential services in a strike that the right to strike was effectively negated, with some bargaining units in health care having close to 100 percent of employees in job classifications deemed essential. The Court found that while restrictions on a right to strike for employees performing essential services may be justified, the manner in which the PSESA restricted the right to strike was not minimally impairing. It allowed the employer to unilaterally designate essential services, job classifications, name individual employees as essential, excluded management from performing essential services, and did not provide any means for unions to challenge these designations (although there was a limited ability to challenge numbers of employees designated essential, but not services or classifications, at the Labour Relations Board.)

Of additional significance to labour lawyers is that the Court found Canada’s international obligations are “highly important in assessing whether provincial labour legislation is Charter compliant” and noted that the PSESA was not consistent with international law and ILO decisions. Of equal significance, the Court rejected the Government’s argument that the Supreme Court of Canada’s decision in Fraser v. Ontario in 2011 signalled a retreat from the principles of the Health Services decision in 2007.

The unions also challenged changes to the Trade Union Act which eliminated card certification and brought in other changes which made organizing more difficult, but the Court found that these changes were not unconstitutional.

The 2012 Canadian Association of Labour Lawyers / Association Canadienne des Avocats du Mouvement Syndical (CALL / ACAMS) will be held from Thursday, June 14 through Sunday June 17 inclusive at the Château Frontenac, Québec City.

Further details concerning the agenda and the events will follow as soon as possible.